Dietary disability

Labour & European Law ReviewWeekly Issue 41913 May 2015

To qualify as a disabled person under the Equality Act 2010, an individual must have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. In Metroline Travel Limited v Stoute, the Employment Appeal Tribunal (EAT) held that people suffering from Type 2 diabetes controlled by diet did not automatically qualify as disabled.

Basic facts

Mr Stoute had worked for Metroline Travel Limited as a bus driver since February 1992. After a fairly “chequered employment history” (which included diverting his bus to go and buy chicken kebabs) he was dismissed in March 2013 for gross misconduct after arriving late for work because he was suffering from diarrhoea.

He brought a number of claims, including one for disability discrimination, on the ground that he suffered from Type 2 diabetes. He controlled this mainly by avoiding sugary drinks and taking medication which sometimes gave him diarrhoea.

Relevant law

Section 6 of the Equality Act states that a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Tribunal decision

Although the tribunal held that Mr Stoute was disabled within the meaning of section 6 because he had Type 2 diabetes, it dismissed his claim of disability discrimination. The company appealed against the finding that his diabetes constituted a disability.

EAT decision

The EAT allowed the appeal on the basis that the tribunal’s decision was perverse. It held that abstaining from sugary drinks could not amount to a substantial adverse effect on day-to-day activities; and nor could it be regarded as medical treatment. Otherwise anyone suffering from Type 2 diabetes controlled by diet would have to be regarded as disabled under the Act. Likewise, people with conditions such as nut allergies, intolerance to lactose and so forth would also have to be regarded as disabled. Type 2 diabetes per se did not therefore amount to a disability.

Apart from anything else, the guidance accompanying the Act states that courts must take into account any “coping or avoidance strategy” that the person uses to alter the effects of the impairment to the extent that they are no longer substantial and the person no longer meets the definition of disability.

Although the appeal was academic in the sense that the tribunal rejected Mr Stoute’s substantive claim, the EAT set aside the decision so that it could not be used by other employees suffering from Type 2 diabetes who want to be recognised as suffering from a disability.

The EAT ordered Mr Stoute to repay the appeal fees incurred by the company which came to £1600.

Comment

This decision has been met with some criticism. Paragraph B14 of the Equality and Human Rights Commission’s guidance on the definition of disability states that "...the case of someone with diabetes which is being controlled by medication or diet should be decided by reference to what the effects of the condition would be if he or she were not taking that medication or following the required diet." This guidance was not cited in the EAT's ruling and appears to conflict with the EAT’s somewhat broadbrush decision that medical conditions controlled by diet cannot be a disability.

The EAT also fails to justify its decision to order Mr Stoute to repay the company’s fees.